CHAPTER 440
WETLANDS AND WATERCOURSES

      Sec. 22a-40. Permitted operations and uses. (a) The following operations and uses shall be permitted in wetlands and watercourses, as of right:

      (1) Grazing, farming, nurseries, gardening and harvesting of crops and farm ponds of three acres or less essential to the farming operation, and activities conducted by, or under the authority of, the Department of Energy and Environmental Protection for the purposes of wetland or watercourse restoration or enhancement or mosquito control. The provisions of this subdivision shall not be construed to include road construction or the erection of buildings not directly related to the farming operation, relocation of watercourses with continual flow, filling or reclamation of wetlands or watercourses with continual flow, clear cutting of timber except for the expansion of agricultural crop land, the mining of top soil, peat, sand, gravel or similar material from wetlands or watercourses for the purposes of sale;

      (2) A residential home (A) for which a building permit has been issued, or (B) on a subdivision lot, provided the permit has been issued or the subdivision has been approved by a municipal planning, zoning or planning and zoning commission as of the effective date of promulgation of the municipal regulations pursuant to subsection (b) of section 22a-42a or as of July 1, 1974, whichever is earlier, and further provided no residential home shall be permitted as of right pursuant to this subdivision unless the permit was obtained on or before July 1, 1987;

      (3) Boat anchorage or mooring;

      (4) Uses incidental to the enjoyment and maintenance of residential property, such property defined as equal to or smaller than the largest minimum residential lot site permitted anywhere in the municipality, provided in any town, where there are no zoning regulations establishing minimum residential lot sites, the largest minimum lot site shall be two acres. Such incidental uses shall include maintenance of existing structures and landscaping but shall not include removal or deposition of significant amounts of material from or onto a wetland or watercourse or diversion or alteration of a watercourse;

      (5) Construction and operation, by water companies as defined in section 16-1 or by municipal water supply systems as provided for in chapter 102, of dams, reservoirs and other facilities necessary to the impounding, storage and withdrawal of water in connection with public water supplies except as provided in sections 22a-401 and 22a-403;

      (6) Maintenance relating to any drainage pipe which existed before the effective date of any municipal regulations adopted pursuant to section 22a-42a or July 1, 1974, whichever is earlier, provided such pipe is on property which is zoned as residential but which does not contain hydrophytic vegetation. For purposes of this subdivision, "maintenance" means the removal of accumulated leaves, soil, and other debris whether by hand or machine, while the pipe remains in place; and

      (7) Withdrawals of water for fire emergency purposes.

      (b) The following operations and uses shall be permitted, as nonregulated uses in wetlands and watercourses, provided they do not disturb the natural and indigenous character of the wetland or watercourse by removal or deposition of material, alteration or obstruction of water flow or pollution of the wetland or watercourse:

      (1) Conservation of soil, vegetation, water, fish, shellfish and wildlife;

      (2) Outdoor recreation including play and sporting areas, golf courses, field trials, nature study, hiking, horseback riding, swimming, skin diving, camping, boating, water skiing, trapping, hunting, fishing and shellfishing where otherwise legally permitted and regulated; and

      (3) The installation of a dry hydrant by or under the authority of a municipal fire department, provided such dry hydrant is only used for firefighting purposes and there is no alternative access to a public water supply. For purposes of this section, "dry hydrant" means a non-pressurized pipe system that: (A) Is readily accessible to fire department apparatus from a proximate public road, (B) provides for the withdrawal of water by suction to such fire department apparatus, and (C) is permanently installed into an existing lake, pond or stream that is a dependable source of water.

      (c) Any dredging or any erection, placement, retention or maintenance of any structure, fill, obstruction or encroachment, or any work incidental to such activities, conducted by a state agency, which activity is regulated under sections 22a-28 to 22a-35, inclusive, or sections 22a-359b to 22a-363f, inclusive, shall not require any permit or approval under sections 22a-36 to 22a-45, inclusive.

      (1972, P.A. 155, S. 3; P.A. 73-571, S. 1, 9; P.A. 77-599, S. 2, 7; P.A. 87-533, S. 2, 14; P.A. 88-364, S. 33, 123; P.A. 94-89, S. 15; P.A. 97-289, S. 5, 9; P.A. 98-209, S. 4; P.A. 11-80, S. 1; 11-184, S. 1.)

      History: P.A. 73-571 allowed usage of wetlands and watercourses for grazing, farming, etc. purposes, for residential purposes, for boat anchorage or mooring and for water supply purposes "as of right" as was previously the case deleting exception "as they involve regulated activities", but allowed usage "as a nonregulated use ... provided they do not disturb the natural and indigenous character of the land" for conservation of soil, vegetation, etc. and outdoor regulation, where previously these uses too had been "as of right"; P.A. 77-599 amended Subsec. (a)(2) for clarity adding references to approval by municipal planning and zoning commissions and to July 1, 1974, as alternate approval date, amended (a)(4) for clarity by adding words "equal to or smaller than" with reference to lot size, by specifying that incidental uses include "maintenance of existing structures and landscaping" but exclude "removal or deposition of significant amounts of material from or onto a wetland or watercourse or diversion or alteration of a watercourse", amended Subsec. (b) to specifically prohibit removal or deposition of material, alteration or obstruction of water flow or pollution of wetlands or watercourses and to refer to field "trials" rather than field "trails" in Subdiv. (2); P.A. 87-533 amended Subsec. (a)(1) to require permits for farm ponds not essential to the farming operation, and certain road construction, relocation of wetlands and watercourses with continual flow, clear cutting of timber, and mining for the purposes of sale and amended Subsec. (a)(2) to require permits for all residential homes after July 1, 1987; P.A. 88-364 made a technical change in Subsec. (a); P.A. 94-89 added Subsec. (a)(6) re maintenance of drainage pipes in certain wetlands areas; P.A. 97-289 amended Subsec. (a)(1) to include in the operations permitted as of right activities of the Commissioner of Environmental Protection re wetland or watercourse restoration and mosquito control, effective July 1, 1997; P.A. 98-209 added new Subsec. (c) re permitted uses by state agencies; pursuant to P.A. 11-80, "Department of Environmental Protection" was changed editorially by the Revisors to "Department of Energy and Environmental Protection" in Subsec. (a)(1), effective July 1, 2011; P.A. 11-184 amended Subsec. (a) by adding Subdiv. (7) re withdrawals of water for fire emergency purposes and making technical changes, and amended Subsec. (b) by adding Subdiv. (3) re installation of a dry hydrant by or under the authority of a municipal fire department.

      Sec. 22a-42a. Establishment of boundaries by regulation. Adoption of regulations. Permits. Filing fee. (a) The inland wetlands agencies authorized in section 22a-42 shall through regulation provide for (1) the manner in which the boundaries of inland wetland and watercourse areas in their respective municipalities shall be established and amended or changed, (2) the form for an application to conduct regulated activities, (3) notice and publication requirements, (4) criteria and procedures for the review of applications, and (5) administration and enforcement.

      (b) No regulations of an inland wetlands agency including boundaries of inland wetland and watercourse areas shall become effective or be established until after a public hearing in relation thereto is held by the inland wetlands agency. Any such hearing shall be held in accordance with the provisions of section 8-7d. A copy of such proposed regulation or boundary shall be filed in the office of the town, city or borough clerk as the case may be, in such municipality, for public inspection at least ten days before such hearing, and may be published in full in such paper. A copy of the notice and the proposed regulations or amendments thereto, except determinations of boundaries, shall be provided to the commissioner at least thirty-five days before such hearing. Such regulations and inland wetland and watercourse boundaries may be from time to time amended, changed or repealed, by majority vote of the inland wetlands agency, after a public hearing in relation thereto is held by the inland wetlands agency, in accordance with the provisions of section 8-7d. Regulations or boundaries or changes therein shall become effective at such time as is fixed by the inland wetlands agency, provided a copy of such regulation, boundary or change shall be filed in the office of the town, city or borough clerk, as the case may be. Whenever an inland wetlands agency makes a change in regulations or boundaries it shall state upon its records the reason why the change was made and shall provide a copy of such regulation, boundary or change to the Commissioner of Energy and Environmental Protection no later than ten days after its adoption provided failure to submit such regulation, boundary or change shall not impair the validity of such regulation, boundary or change. All petitions submitted in writing and in a form prescribed by the inland wetlands agency, requesting a change in the regulations or the boundaries of an inland wetland and watercourse area shall be considered at a public hearing held in accordance with the provisions of section 8-7d. The failure of the inland wetlands agency to act within any time period specified in this subsection, or any extension thereof, shall not be deemed to constitute approval of the petition.

      (c) (1) On and after the effective date of the municipal regulations promulgated pursuant to subsection (b) of this section, no regulated activity shall be conducted upon any inland wetland or watercourse without a permit. Any person proposing to conduct or cause to be conducted a regulated activity upon an inland wetland or watercourse shall file an application with the inland wetlands agency of the town or towns wherein the wetland or watercourse in question is located. The application shall be in such form and contain such information as the inland wetlands agency may prescribe. The date of receipt of an application shall be determined in accordance with the provisions of subsection (c) of section 8-7d. The inland wetlands agency shall not hold a public hearing on such application unless the inland wetlands agency determines that the proposed activity may have a significant impact on wetlands or watercourses, a petition signed by at least twenty-five persons who are eighteen years of age or older and who reside in the municipality in which the regulated activity is proposed, requesting a hearing is filed with the agency not later than fourteen days after the date of receipt of such application, or the agency finds that a public hearing regarding such application would be in the public interest. An inland wetlands agency may issue a permit without a public hearing provided no petition provided for in this subsection is filed with the agency on or before the fourteenth day after the date of receipt of the application. Such hearing shall be held in accordance with the provisions of section 8-7d. If the inland wetlands agency, or its agent, fails to act on any application within thirty-five days after the completion of a public hearing or in the absence of a public hearing within sixty-five days from the date of receipt of the application, or within any extension of any such period as provided in section 8-7d, the applicant may file such application with the Commissioner of Energy and Environmental Protection who shall review and act on such application in accordance with this section. Any costs incurred by the commissioner in reviewing such application for such inland wetlands agency shall be paid by the municipality that established or authorized the agency. Any fees that would have been paid to such municipality if such application had not been filed with the commissioner shall be paid to the state. The failure of the inland wetlands agency or the commissioner to act within any time period specified in this subsection, or any extension thereof, shall not be deemed to constitute approval of the application.

      (2) An inland wetlands agency may delegate to its duly authorized agent the authority to approve or extend an activity that is not located in a wetland or watercourse when such agent finds that the conduct of such activity would result in no greater than a minimal impact on any wetland or watercourse provided such agent has completed the comprehensive training program developed by the commissioner pursuant to section 22a-39. Notwithstanding the provisions for receipt and processing applications prescribed in subdivision (1) of this subsection, such agent may approve or extend such an activity at any time. Any person receiving such approval from such agent shall, within ten days of the date of such approval, publish, at the applicant's expense, notice of the approval in a newspaper having a general circulation in the town wherein the activity is located or will have an effect. Any person may appeal such decision of such agent to the inland wetlands agency within fifteen days after the publication date of the notice and the inland wetlands agency shall consider such appeal at its next regularly scheduled meeting provided such meeting is no earlier than three business days after receipt by such agency or its agent of such appeal. The inland wetlands agency shall, at its discretion, sustain, alter or reject the decision of its agent or require an application for a permit in accordance with subdivision (1) of subsection (c) of this section.

      (d) (1) In granting, denying or limiting any permit for a regulated activity the inland wetlands agency, or its agent, shall consider the factors set forth in section 22a-41, and such agency, or its agent, shall state upon the record the reason for its decision. In granting a permit the inland wetlands agency, or its agent, may grant the application as filed or grant it upon other terms, conditions, limitations or modifications of the regulated activity which are designed to carry out the policy of sections 22a-36 to 22a-45, inclusive. Such terms may include any reasonable measures which would mitigate the impacts of the regulated activity and which would (A) prevent or minimize pollution or other environmental damage, (B) maintain or enhance existing environmental quality, or (C) in the following order of priority: Restore, enhance and create productive wetland or watercourse resources. No person shall conduct any regulated activity within an inland wetland or watercourse which requires zoning or subdivision approval without first having obtained a valid certificate of zoning or subdivision approval, special permit, special exception or variance or other documentation establishing that the proposal complies with the zoning or subdivision requirements adopted by the municipality pursuant to chapters 124 to 126, inclusive, or any special act. The agency may suspend or revoke a permit if it finds after giving notice to the permittee of the facts or conduct which warrant the intended action and after a hearing at which the permittee is given an opportunity to show compliance with the requirements for retention of the permit, that the applicant has not complied with the conditions or limitations set forth in the permit or has exceeded the scope of the work as set forth in the application. The applicant shall be notified of the agency's decision by certified mail within fifteen days of the date of the decision and the agency shall cause notice of their order in issuance, denial, revocation or suspension of a permit to be published in a newspaper having a general circulation in the town wherein the wetland or watercourse lies. In any case in which such notice is not published within such fifteen-day period, the applicant may provide for the publication of such notice within ten days thereafter.

      (2) Any permit issued under this section for the development of property for which an approval is required under section 8-3, 8-25 or 8-26 shall be valid for five years provided the agency may establish a specific time period within which any regulated activity shall be conducted. Any permit issued under this section for any other activity shall be valid for not less than two years and not more than five years. Any such permit shall be renewed upon request of the permit holder unless the agency finds that there has been a substantial change in circumstances which requires a new permit application or an enforcement action has been undertaken with regard to the regulated activity for which the permit was issued provided no permit may be valid for more than ten years.

      (e) The inland wetlands agency may require a filing fee to be deposited with the agency. The amount of such fee shall be sufficient to cover the reasonable cost of reviewing and acting on applications and petitions, including, but not limited to, the costs of certified mailings, publications of notices and decisions and monitoring compliance with permit conditions or agency orders.

      (f) If a municipal inland wetlands agency regulates activities within areas around wetlands or watercourses, such regulation shall (1) be in accordance with the provisions of the inland wetlands regulations adopted by such agency related to application for, and approval of, activities to be conducted in wetlands or watercourses and (2) apply only to those activities which are likely to impact or affect wetlands or watercourses.

      (g) Notwithstanding the provisions of subdivision (2) of subsection (d) of this section, any permit issued under this section prior to July 1, 2011, that has not expired prior to May 9, 2011, shall expire not less than nine years after the date of such approval. Any such permit shall be renewed upon request of the permit holder unless the agency finds that there has been a substantial change in circumstances that requires a new permit application or an enforcement action has been undertaken with regard to the regulated activity for which the permit was issued, provided no such permit shall be valid for more than fourteen years.

      (P.A. 73-571, S. 4, 9; P.A. 75-387, S. 1; P.A. 77-599, S. 3, 7; P.A. 79-285, S. 1, 2; P.A. 81-125, S. 2; P.A. 83-109; P.A. 87-533, S. 6, 14; P.A. 89-356, S. 16; P.A. 92-148, S. 1, 2; P.A. 93-305; P.A. 95-313, S. 3; P.A. 96-157, S. 4; 96-269, S. 3, 4; P.A. 97-124, S. 10, 16; P.A. 98-209, S. 16; P.A. 99-225, S. 16, 33; P.A. 03-177, S. 11, 12; 03-276, S. 6; P.A. 09-181, S. 3; P.A. 11-5, S. 4; P.A. 11-80, S. 1.)

      History: P.A. 75-387 specified in Subsec. (b) that amendment or repeal of regulations takes place only after public hearing is held, moved upper limit for hearing date from 60 to 65 days after receipt of application and required that action be taken within 65 rather than 45 days after completion of hearing in Subsec. (c), and required that applicant be notified of decision within 15 rather than 5 days after decision reached in Subsec. (d); P.A. 77-599 required that commissioner be sent a copy of changed regulations, boundaries, etc. in Subsec. (b) and a copy of permits or orders issued in Subsec. (d) and required that reasons for a decision be included in the record; P.A. 79-285 required publication of notice twice rather than once and set standards for times of posting and added Subsec. (e) re filing fee; P.A. 81-125 added the word "watercourse" after each use of the words "inland wetland" for consistency with other sections of the chapter; P.A. 83-109 amended Subsec. (c) by establishing the day of receipt of applications for permits to conduct a regulated activity upon an inland wetlands or watercourse; P.A. 87-533 amended Subsec. (a) to require regulations on forms for an application notice and publication requirements, criteria and procedures for review and administrative and enforcement, amended Subsec. (b) to require notice to the commissioner before a public hearing and to delete provision which had authorized imposition of filing fee, amended Subsec. (c) to require that public hearing be completed 45 days after commencement and to reduce time for action on applications from 65 to 35 days, amended Subsec. (d) to require zoning compliance before regulated activity is conducted in an inland wetland and to delete provision requiring sending of copy of permit and order to commissioner within 10 days of issuance and amended Subsec. (e) to authorize municipalities to charge filing fees sufficient to cover the reasonable cost of reviewing and acting on applications; P.A. 89-356 amended Subsec. (b) to authorize the petitioner to consent to more than one extension of the periods specified for the holding of the hearing and for action on the petition provided the total extension is not for longer than the original period and to add provision that the failure of the agency to act in a timely manner shall not be deemed to constitute approval of the petition, amended Subsec. (c) to add provisions authorizing the applicant to consent to one or more extensions of the time periods for agency action, provided the total extension is not for longer than the original period, or to withdraw the application, authorizing the applicant to file the application with the commissioner of environmental protection for review and action if the agency fails to act within specified time periods or any extension thereof, specifying that the costs of the review by the commissioner shall be paid by the municipality and that fees otherwise payable to the municipality shall be paid to the state, and specifying that the failure of the agency or commissioner to act in a timely manner shall not be deemed to constitute approval of the application, and amended Subsec. (d) to authorize the applicant to provide for the publication of the notice of the decision of the agency when such notice is not published in a timely manner; P.A. 92-148 amended Subsec. (b) to change the required time of the first newspaper advertisement for a hearing under that Subsec. to not more than 15 days nor less than 10 days before such hearing, reducing time frame by 10 days, and amended Subsec. (d) to provided for specific time limits for permits issued under that Subsec; P.A. 93-305 amended Subsec. (d) to modify the authority of wetlands agencies re expiration dates of permits and time required for completion of regulated activities; P.A. 95-313 added Subsec. (f) re buffer areas; P.A. 96-157 amended Subsec. (c) to create Subdivs. (1) and (2), amended Subdiv. (1) to condition the holding of public hearings on applications and added Subdiv. (2) to provide for delegation by the agency of certain authority to an agent, amended Subsec. (d) to create Subdivs. (1) and (2) and amended Subdiv. (1) to include references to action by the agent, to provide for terms for permits, deleted provisions re time periods for permits and added Subdiv. (2) re time periods for permits, and amended Subsec. (f) to delete a reference to "buffer" areas and to include references to watercourses; P.A. 96-269 changed effective date of P.A. 96-157 from October 1, 1996, to January 1, 1997, effective June 12, 1996 (Revisor's note: Due to a clerical error in Subsec. (c)(1) the words "... impact on wetlands or watercourses, a petition signed ..." were incorrectly printed in the original engrossed bill version of P.A. 96-157 as "... impact on wetlands, watercourses or a petition signed ..."); P.A. 97-124 amended Subsec. (c) to modify the time period for making a request for a public hearing, to exempt the actions of an agent of the municipal agency from certain time period requirements and to make technical changes, effective June 6, 1997; P.A. 98-209 amended Subsec. (c) to add additional provision for issuance of a permit without a public hearing; P.A. 99-225 amended Subsec. (c)(1) to modify the deadline for receipt of a petition for a public hearing on applications under this section, effective June 29, 1999; P.A. 03-177 amended Subsec. (b) by eliminating provisions re public hearing notice and procedure and the time for an inland wetlands agency to render a decision on a petition and adding provisions requiring public hearing to be conducted in accordance with Sec. 8-7d, and amended Subsec. (c)(1) by replacing provisions re determination of date of receipt of application, public hearing notice and procedure and the time for rendering a decision with provisions requiring public hearing to be conducted in accordance with Sec. 8-7d, effective October 1, 2003, and applicable to applications filed on or after that date; P.A. 03-276 amended Subsec. (c)(1) to add age and residency requirements for persons who sign a petition, effective July 1, 2003; P.A. 09-181 added Subsec. (g) re permits issued during period from July 1, 2006, to July 1, 2009, effective July 2, 2009; P.A. 11-5 amended Subsec. (g) to apply to any permit issued prior to July 1, 2011, that has not expired prior to May 9, 2011, and to provide that such permits shall expire not less than 9 years after approval date and shall be valid for not more than 14 years, effective May 9, 2011; pursuant to P.A. 11-80, "Commissioner of Environmental Protection" was changed editorially by the Revisors to "Commissioner of Energy and Environmental Protection" in Subsecs. (b) and (c)(1), effective July 1, 2011.